OSC Warns Against Narrow Reading of Whistleblower Protections

The Office of Special Counsel says that a recent decision by an MSPB hearing officer should be overturned on grounds that it would improperly narrow the situations in which whistleblower protections apply to federal employees.

The OSC made that argument in a filing with the MSPB board, which currently is unable to hear any cases because all three of the seats are vacant. However, an eventual decision would define the scope of a 2018 law that extended protection to those who provide information to any agency component “responsible for internal investigation or review” in addition to the agency’s IG or to the OSC itself.

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The case involved an employee who claimed retaliation after disclosing a possible computer security violation to the agency’s computer security office, which reviewed the information and opened an investigation. However, the hearing officer said that was not a disclosure to an investigative entity as described in whistleblower law, holding that the office does not investigate the agency but rather only internal complaints and issues.

The OSC said that under the 2018 law, disclosures should be protected if they are made to any agency component that “has formalized procedures for reviewing or investigating potential misconduct, deficiencies, or risks.”

“A clear, easy-to-follow standard is necessary for employees to know if they are protected when participating in an internal agency investigation or review. This approach would also serve as clear guidance to agencies that an employee’s disclosure to or cooperation with an agency’s investigative component is protected the same as interactions with an IG or OSC,” it said.